India: Can Ideas Be Patented?

Last Updated: 30 May 2019
Article by Sonal Sodhani

Introduction

Patentability of an idea is one of the controversial topics faced during the grant of patents. There is a very fine line difference between an idea and an invention because every invention is first an idea which later matures and gets patented. On the face of it, it seems that there is no substantial way to protect an idea under intellectual properties. Copyright protects literary and artistic works but not innovations and patent protects noval and unique inventions. Even though idea is first step towards an invention and is of significant importance, there is no monetary value attached to it, as per law.

Inventors prefer to have a non-disclosure or a confidentiality agreement in the initial stage of their invention development in order to protect their idea. However, such an agreement is not binding any other person or organisation except the one signing the agreement. So, if any third party, not being a party to the agreement, discloses or uses the idea cannot be sued upon by the inventor.

For an idea to be protected within the Patent laws, it is essential that the idea should not be ambiguous and vague. Mere idea cannot be protected but when the idea is concrete with enough specificity and one has a strategy to describe it and its functioning, making it an asset valuable enough to be protected, then such an idea can be protected.

Herein after, various conditions and requirements for a patent has been discussed concluding to provide situations where an idea can be patented under Indian laws.

Patent

Patent is a kind of intellectual property that grants certain legal rights to the owner of such IP against the unauthorised selling, using, making or sharing of any of his work or invention for a limited period of time. Patent, in other words, can be said to be a license granted to the inventor giving him exclusive rights over his invention, be it a process or a product, for a certain period of time. Such an invention, however, should be a new method of doing something or should provide with a solution to an already existing problem. A patent is granted for a period of 20 years and then the invention is made available in the public domain.

Types of Patent[1]

1. Utility Patent

It is the most common type of a patent and covers all new inventions and significant modification and improved process or product, having some utility. Utility patent is also referred as 'patent for invention.' The patent protects the rights of the inventor over his invention by preventing any third party to use, sell, or make the invention in question, without proper authorization.

2. Design Patent

An exclusive right providing legal protectionto the ornamental design of a useful product is granted under the design patent. Design of a printer, shape of spoons, etc. are some examples that can be granted design patent.

3. Plant Patent

As the name suggests, plant patent is the patent granted on plants. New plants that are produced through asexual modes of reproduction like cutting, vegetative propagation, etc. are eligible to be granted plant patent. However, plant patents are not granted in India.

Requirements of a Patent

Apart from being a new process, machine, or combination and composition of different matters, for the patent to be granted it is also required that the work be non-obvious and unique. Below mentioned are essential criteria that the work must fulfil, in order to be eligible for a grant of patent –

1. Novelty

For an invention to be patented it is essential that the work is unique and novel. It should not have been made before, nor been published or described in any patent application before. It is of prime importance that the work in question should be different from already existing creations in any way and has not been made by anyone before. The requirement for the work to be new, unique and not within the public domain is provided in Section 2 (l) of the Patent Act, 1970.

2. Non-obviousness

As the term suggests, the work should not be obvious to the society. It should not be such that could be easily predictable by a person who is skilled in that art. An idea to combine two things is not something on which a patent can be granted. For instance, an idea of a pencil having an eraser at its other end, thereby combining the two products, i.e. a pencil and an eraser, cannot be patented. There has to be a uniqueness to such a combinationwhich makes an obvious idea, a not-so-obvious invention. Sec 2 (ja) of the Patent Act 1970 provides the need for an "inventive step" for a work to be patented.

3. Industrial Applicability

Sec. 2 (ac) defines industrial applicability, according to which a work must have a practical utility in industries in order to be granted a patent. The invention should not be vague or exist in abstract. It should be something having utility and practicability for industrial purpose.

Inventions that cannot be patented in India[2]

Even after fulfilling all the requirements for the grant of patent, some inventions cannot be granted the patent in India, for some specific reasons. Indian Patent Act, 1970, in its provisions under Section 3 and 4 specifically mentions exclusion of certain types of invention from being granted the patent, irrespective of their fulfilling the patent requirement. Such inventions are discussed, herein:

1. An invention contrary to the natural law: An invention which violates morality of public at large and disturbs public order cannot be patented. Likewise, an invention made to ease gambling, theft, cyber-crimes or any criminal offence cannot be patented. Similarly, an invention for commercial exploitation is excluded from being granted the patent. Any invention that causes or is likely to cause an adverse effect on humans, animals, plants or environment is not to be patented. Only those micro-organisms with genetically modification can be patented which do not fall under Sec. 3 (b) can be granted patent.

2. Mere discovery: Mere discovery of a living creature or any non-living substance found in the natural environment or simply a discovery of a scientific principle shall not be patented. Such a thing has not been created or invented, it already existed in the environment from time immemorial, the fact that such thing was found or recognised late, or use of such substance was not known earlier, does not give it a ground to be called an invention and likewise, cannot be granted patent.

3. Discovery of a new property of a known substance: Patent is granted on a new invention and not on an already existing creation. Mere finding of a new feature of an already existing creation does not amount to it qualifying for patent, this is for the fact that the creation already existed of which a new feature has been discovered. Hence, nothing new has been created or invented. Various forms of a known substance cannot be granted a patent. However, it is only when such discovery results in formation of new product or includes at least one new reactant.

4. Arrangement or re-arrangement of known substances: If two substances or devices or techniques which are known and work independently as separate units are arranged or rearranged for the functioning, such arrangement shall not be patented. A torch if attached on a mug or television, will not be patented. However, if the arrangement in question results in a complete different use of the combined product, it is eligible to be granted a patent.

5. Agriculture and horticulture: A technique for cultivation and agriculture cannot be patented. For example, a new type of soil, or a new technique to cultivate crops or food grains cannot be granted patent.

6. Medical processes: Any medical, curative, surgical or therapeutic process or treatment of humans or a similar process or treatment for animals, which is been made to cure them or prevent them from disease or to increase their economic value cannot be patented. It is to be noted that processes in this case is not considered as an invention and hence is not entitled to be patented. For instance, process of a heart surgery or kidney transplant is not patentable.

6. Plants and animals: Apart from the micro-organisms but including the species, seeds and other essential sexual and asexual modes and methods of reproduction and propagation is not patentable.

7. Mathematical methods and computer programs: Any kind of mathematical process, algorithms, a business method or a computer program cannot be patented. A computer program can be given a copyright as a 'literary or artistic work', but the same cannot be patented.

8. Literary and artistic work: All types of literary, musical, artistic or other aesthetic creation including cinematography and television production which comes within the ambit of the Copyrights Act, gets excluded from the scope of being patented. Method of solving a puzzle and likewise, which is a process or rule of playing a game or a mental act cannot be patented.

9. Topography and traditional knowledge: Presentations be it audio or visual is not patented. Topography of any circuit cannot be granted patent. Traditional knowledge or accrual of traditionally known components is not patentable, unless such knowledge is modified to become a new process or product which is unique and non-obvious.

10. Invention out of atomic energy: Section 4 of the Patent Act specifically excludes all the inventions coming within Sec 20 (1) of Atomic Energy Act, 1962. This is done for the safety and welfare of the public at large as if atomic activities are allowed patent grants, it can be misused and the same can result to be disastrous for people at large.

Can an idea be patented?

Section 10 of the Patent Act provides for some essential specifications which must be provided in the application for patent. One of such specification is the preamble. In case of a provisional application, the preamble starts with 'the following specification describes the invention' and the preamble of the complete application reads as 'the following specification particularly describes the invention and the manner in which it is to be performed.'[3]With reference to this it can be said that for an invention to be patented it is essential that it has its practicability. Considering the same, it can be said that, if an idea has the potential to be performed and one has the method and process for its working, in this case, the idea has the possibility of changing into an invention and thereby can be applied for a patent through a provisional application.

For the reason of a mandate disclosure of best mode of performance of invention to be mentioned in the complete application, the idea can be described and filed for patent through provisional application and subsequently one can work a way out with a technique for its performance, within 12 months of filing provisional application and then the complete application may be filed. However, it is to be noted that on failure of filing complete application within the stipulated period, the provisional application may be rejected and be held invalid on the grounds of insufficient description of the invention or the method.

For an instance, a person has an idea of making a mobile application cyber threat warning system and has prowess to convert the thought into an invention. In such situation, the person may file a provisional application for grant of patent by describing his idea of the application and later within a period of 12 months may file a complete application also describing the mode and process of performance of such invention. Failure of submission of complete application may amount to invalidation of the application.[4]

Conclusion

With reference to above discussion, it can be said that an idea can be patented if it can later be transformed into an invention. An inventor can file for patent for his idea initially, but he must analyse his idea whether it has the capability to be performed or not. If the idea lacks the capacity of performance, the application shall be rejected and patent cannot be granted. Hence, for an idea to be filed in a patent application, it is essential that the idea must not be vague but substantive enough to become an asset later, provided the mode of performance of the invention is available and possible.

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